The Conversation - II

(On Law & Justice ....)

Avinash : You know, at times I really think that the law is aptly called blind. Why else is there so much injustice all around, despite libraries full of Codes, Laws, Regulations and Rules in our country. The discontentment has climbed upto an extent where people call law an a** . Ever thought why is it so ?


Me: I cannot tell you any particular reason for that..Well, le'me see; I think it’s mostly because of the popular perception that law serves the interests of only the powerful and the privileged, while the un privileged suffer despite all the protection purported to be guaranteed to them by it. The anger is fixated on the high and the mighty who appear to be immune to the rigours of law. It's also because of the prevalent understanding that despite so many so called stringent laws, there are all kinds of crimes and wrongs taking lace in our community. I may further add here that besides the law itself, a part of the anger is directed at lawyers and Courts. The former are considered to be slick manipulators of the law and the latter to be incompetent and inept as hundreds of (presumed) guilty escape the clutches of law under the very eyes of our Courts.

Avinash: Is that correct ......factually ?


Me: Look, nothing is absolutely perfect. There's always gonna be a certain degree of deficit between the aim of any law and the achievement of that aim. What's important is that there must be a perpetual endeavor towards attaining perfection.


Avinash : Sorry brother, you lost me.


Me. I'll explain.


Avinash : Yeah, please.


Me: You ask any diligent student of law, as to whether a particular issue, if at all addressed by any law has been reasonably dealt with, by it or not. He'll answer it in affirmative. But if you then ask him whether it holistically resolves it, he may not always answer in affirmative. But that may be because the full extent of the issue in question may not have been fathomed at the time of framing the relevant law. It is not humanely possible to foresee every likelihood, however remote that might be, at the time of drafting a legislation concerning that issue or problem.


Avinash: Lost..Lost..Lost

Me: Ok ok...wait...Let’s, for instance, take the example of the Indian law against rape. The Indian Penal Code (IPC) defines what amounts to rape. Let me quote the legal definition of the offence for you and then it'll be better suited to explain my point. Section 375 of IPC defines that a man is said to commit “rape” who, has sexual intercourse with a woman under circumstances falling under any one or more of the six numerated descriptions which are – firstly against her will or secondly without her consent or thirdly with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believed that he is another man to whom she is married ,fifthly, with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication, she is unable to understand the nature and consequences of that to which she gives consent and sixthly with or without her consent, when she is under sixteen years of age. There is one exception which says that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The punishment for rapists is a minimum of seven years of incarceration and the Court may also extend it to a term of imprisonment for the whole of his life besides sentencing him to pay fine.

Avinash: OK.


Me: Now having heard about the law, I'm sure you would agree that if this particular section was drafted around the year 1860, various factors were taken into account to make it a fully armed provision to combat the evil of rape.


Avinash: You can say that.



Me: Well I'm not saying that. This provision of law has stood the test of time for over a century now. There is barely anything which it does not cover, under its six clauses.


Avinash: Yeah . It seems so


Me: Come 'on now Mr. cynic, stop critiquing for the sake of it, if you really think the law is insufficient, tell me what does Section 375 lack in ?!!


Avinash : I'm no lawyer but I think if the law is so full fledged, then the statistics of rape in this country ought to be something else.


Me: My friend, the world does not begin and end with drafting of a law. There are allied issues surrounding its efficacy and implementation, and of course the legal process of a trial where the truth is supposed to be revealed and the guilty be punished..Ok ? So I was saying that a century ago the law under Section 375 was enacted to punish rapists and it seemed fine uptil 1983, when the burning phenomenon of custodial rape hounded our society. Men in charge of important institutions were found to take advantage of their position and commit rape on unsuspecting females who had surrendered themselves into their custody for entirely noble purposes. So the law caught up with this evil by virtue of enactment of a series of four sections (Sections 376 A to 376 D) besides the revamping of Section 376 itself, in as much as it brought within its purview police officers, public servants, personnel in the management or on the staff of a jail, remand home or other place of custody established by or under any law or of a woman's or children's institution who are susceptible to misusing their position to ravish women under their care. It also made the punishment harsher for these class of violaters as it considered these persons to be under a far greater obligation to guard themselves against offending tendencies than ordinary men. More to this it also took cognizance of the alarming rate of gang rape, rape of pregnant women and rape of females under twelve years of age and therefore brought into existence the definition and punishment for these ghastly crimes, crimes which I'm sure were either unheard of or much less recurrent during yester - years.


Avinash: I see.


Me. Yeah!!. So what I'm trying to say is that no law is always fool proof. It's difficult to point out any law in any part of the world which has not been taken for a toss. The test is whether the roots of it are so reasonably firm that it could bounce back with force, even after being violated with mala fide designs.


Avinash: Why is it then that there is such pervasive disregard for law and its sanctions ? Why is that only if you are a land tiller or a impoverished stealer of goods you suffer the consequences of your wrong doings and the more affluent slither away from its rigours ?

Me: My friend, I'm afraid there's no strait jacket answer to that. I'll still try to allay your notions. In ancient times, in places like Rome, the cradle of legal history, law was evolved as a means to regulate the interests of a larger mass of people to the detriment of a erring few. It is said that the members of society came together and decided that they will unanimously relinquish assertion of certain rights for the greater benefit of regulation of order in their community. For example if all were to claim their right to walk on a particular road at a given point in time, then there would be complete breakdown of traffic, correct ?. Hence we have agreed that we'll relinquish our right to use the road when someone else is entitled to walk on it, that entitlement being left to be decided by that authority which is responsible for regulating traffic In short we've consciously trimmed our own cherished freedom, by virtue of a set of norms, in order to prevent chaos & anarchy.


Avinash: Right, right. Yes, I remember that story from my 12th Standard textbook, ummm. .. I forgot that author's name...ummm...Dammn !!!



Me: Don't sweat over it now.In any democracy, if you closely observe, the underlying principle of law making, you will discover that it is to subserve the greater benefit of the greatest majority. In India the law has been written on the cardinal principle that a hundred guilty might escape but one innocent man should not go the gallows. What one must immediately decipher from this philosophy is that the law has all kinds of protection writ into it for the 'not guilty'. Automatically therefore, it functions in a manner where it affords, to the innocent, all opportunities reasonably conceivable, to maintain that he's innocent. For example the burden of proving that a man is guilty is always, barring rare instances, on the party who makes such an allegation. The accused has to sit and wait till his prosecutor / prosecutrix succeeds in convincing the Judge that the accused is guilty. It's only after this stage has been reached at, that the accused will have to disprove all the evidence against him. Till then he can sit and relax. Though this principle does not hold good for a large number of mordern age crimes, yet it is the bedrock on which the criminal jurisprudence rests.



Avinash: Unbelievable..this is so outrageous. I get thrashed by you, looted by you and left for dead & I'll have to prove all this while you sit and enjoy my despair. Brilliant !!! That explains why there is such an appalling rate of convictions in criminal trials especially the ones, where the the accused is a man with contacts and the moolah. (fumes).


Me: I understand your loathing the system, but you must remember what I told you in the beginning; the law is written with an intrinsic safeguard against wrongful convictions, which is why, it casts the initial burden of proof on the prosecutor and not the other way round.



Avinash: I don't quite subscribe to this standard. To me it's a camouflaged gift to the cunning law breakers, a sort of encouragement to keep breaking it.


Me: Listen, you must understand that we are not a hardcore State like some of our neighbours, where accusation is often confused with verdict. To condemn a man, just because he's accused of something is not the sign of a healthy society. Let's in hypothesis, consider a case where you are seen standing near a dead body by some passers by. For all we know you could have been there to help him or rob him. During ensuing investigation, it's found that the deceased died an unnatural death under suspicious circumstances. No one knows who killed him and why. He was a vagabond with no criminal records or social acquaintances. The Police will definitely arraign you as the prime suspect and may be as the accused for murder.

Now if we are to go by your disownment of the existing standards of jurisprudence then imagine your harrowing condition in the trial, where for being wrongly picked up by the Police, you, instead of them will have to fight for your cause. The Police will then start habitually picking up anyone for any random crime, for it knows well that it has nothing to worry about as the poor fellow will have to work hard to save his liberty.



Avinash: But look at the cost we are paying for such a system. Its being brazenly twisted and steered for selfish ends. I don't know how many innocents, the system is saving from the gallows ,but it is surely protecting hundreds of guilty from being brought to book, as it lets them craftily manipulate law's inherent protection for the innocent, in their favour.


Me: What can I say my friend. You are cent percent correct. All I can tell you humbly is that it is a necessary collateral burden we must bear for upholding and maintaining the sanctity of our constitutional values and our ethics as a nation truly committed to equality of opportunity. Moreover I believe that its not the fault of the system alone, because when our founding fathers rested their faith on it, they did it on a bona fide assumption that their future generations will be sensible citizens devoid of corrupting vices. We have betrayed that assumption beyond every conceivable degree of treachery. When you say that a powerful man has manipulated the system, do not forget that he had several hands to aid and abet him in his malicious designs. Some persons somewhere must have made some concession in discharging their duty, for whatsoever motivation it may be, resulting in the victory of the manipulator.



Avinash: I must speak now of Kasab's case.



Me: Yeah, what about it ?



Avinash: Where hundreds of people saw him doing what he did on Close Circuit Camera TV, isn't it almost comical to again go through the detailed process of a criminal trial to prove his guilt.


Me: My answer is the same...I don’t want to recite. It may sound ridiculously outrageous, to offer someone like Kasab the same fairness of opportunity to defend himself, as is offered to any motorcycle thief. But you must realize that if we do not, it will set such ghastly precedence , that in future its example will be exploited to a regretful extent. I'll clarify further with two simple illustrations. Let's consider a case where, after a terrorist attack, the guilty are at large and there's such overwhelming pressure on the investigating agencies of our country, which is often seen in such cases, that it stages simpletons, either by coercion or by inducement, as the ones responsible for the attack. Now if the deeds are as ghastly as that of Kasab's then the prosecution will quote the precedent of Kasab's trial and demand skipping and short circuiting their trial, as was done in Kasab's case. If his plea were to be indeed entertained by the Court, then don't you think it'll be a travesty of justice. There is further a strong likelihood that the investigating agencies & the prosecution agents will become so addicted to such short - circuiting that, ghastlier the crime, the stronger their demand will be for hasting away with the trial process. Just imagine where we'll end up then.


Avinash: Hmm..


Me: Look Avinash, please do not misunderstand my deliberations as a complete support for the entire Kasab episode, I believe such actions must be responded with the harshest of deterrence, so that prospective criminals shudder before embarking themselves on similar pursuits. All I'm saying is that there is nothing wrong in achieving that end by means which are established by the founding fathers of our nation. At the same time I'm not quite sure if I could be of the same supportive opinion about the duration of time consumed by the legal process in Kasab's case.


Avinash: Exactly, you just asked my question bro. What about that, eh ? Years and years of piling on of cases and their pendency in Courts. How can you even think of justifying it, while haplessly wronged persons wait endlessly for justice?


Me : I will not justify it, I can't, I don't want to, because its wrong.


Avinash : So much about the law and legal process but no sermon on delay in conclusion of trials ? I know there’s nothing to be said... Hey is that rain I feel on my skin or just the wayward spray of the waves ?


Me: No its gonna drizzle, I guess ? Hey why not go to that cafe there and grab something for our tummies. Talking makes me hungry, you know? ! I've heard they serve mind blowing noodles there, and we can always talk about the "Justice delayed is justice denied" issue over steaming noodle strands. What say?


Avinash ( yelling ) : Noodles, here we come (runs frantically towards the restaurant with his hand shielding his head from the growing drizzle, as people around look on, startled at such an unannounced display of enthusiaism)



Me: (To nearby on lookers ) Never Mind !!!...Stop you lunatic (chasing Avinash )





                                                                                 (...........to be continued in Part III)










( Read Part - I here )